Saturday, July 11, 2009

Texas Restaurant Ejects Gay Diners After Two of Them Kiss

As a group of five gay males placed their food orders at a Chico's Tacos in El Paso, Texas, two of them shared a kiss. That kiss prompted security guards to eject them from the restaurant. During the encounter with the guards, one of the patrons called the police, but when officer friendly arrived, he told them to leave as well. According to the El Paso Times, the officer said it was unlawful for "two men or two women to kiss in public" and that he could arrest them for engaging in "homosexual conduct." After the police threatened to arrest the diners, they left.

Can a Restaurant Refuse to Serve Anyone at Will?The reports of this incident indicate that the local police are either ignorant of or grossly indifferent to the relevant law. First, the El Paso Times article quotes a local police officer (without indicating whether he responded to the call), who states that police could have charged the men with "criminal trespass" because:

Every business has the right to refuse service. They have the right to refuse service to whoever they don't want there. That's their prerogative.

This comment, however, is grossly misleading. While places of public accommodation can decline to serve or host individuals, they cannot do so in a manner that violates antidiscrimination laws. For example, the restaurant could not have lawfully turned away black, white or Asian-American diners because of race (ask Denny's).

Although federal laws and the laws in most states do not prohibit places of public accommodation from discriminating on the basis of "sexual orientation" or "gender identity," an El Paso civil rights ordinance does. Accordingly, restaurants in the city cannot lawfully discriminate against GLBT customers. Therefore, unless Chico's Tacos bans kissing by all diners -- which is highly unlikely -- then it has discriminated on the basis of sexual orientation and violated the ordinance.

The fact that the restaurant ejected all of the gay males -- even the three who did not kiss -- only bolsters the evidence that this incident was purely about discrimination. Also, the guards' alleged use of anti-gay epithets and the police officer's false assertion that homosexual conduct is illegal (see below) prove discriminatory motivation as well.

Does Texas Law Ban Gay and Lesbian Kissing?Another police distortion surrounds the responding officer's statement that he could arrest the men because Texas law bans "homosexual conduct." Most of reports correctly indicate that in 2003, the Supreme Court invalidated a Texas statute that prohibited homosexual conduct (see Lawrence v. Texas). That law, however, only prohibited oral or anal sex -- not kissing -- between two people of the same sex. Accordingly, the police officer was wrong to threaten the individuals with arrest for two reasons. First, Texas law does not ban same-sex kissing, and six years ago, the Supreme Court invalidated a state law that banned gay and lesbian sex.

Conclusion: Sue the restaurant and the police for clear violations of the law. The end.

13 comments:

Anonymous
said...

By all means. This will so disgust people that these absurd laws will be overturned or amended. Nobody wants to bring their family to a restaurant and watch a couple of homosexuals engaging in sex at the next table while the restaurant's hands are tied. (I'm sorry, we can't do anything or they will sue us.) Gotta love the backlash this kind of liberalism is creating.

But wait you say. Why homosexuals? What about heterosexuals doing the same thing? Simple. They would have been kicked out immediately and nobody would have questioned the decision. No cops, no ACLU, no press, no lawyers, no lawsuits. Only homosexuals get that kind of deference. See the inequality? Yes, there will be a backlash.

Apparently the enlightened readers of the blog do not believe in kissing as part of sex. The action in question did not take place between parent and child. There is no video, but it seems unlikely that a quick and discrete peck on the cheek was all that was involved.

Anonymous: It's interesting that with all the reporting on the issue saying that it was a mere kiss -- you still think it was "part of sex." That's ridiculous - just as ridiculous as the behavior of the security guard and the cops. People "kiss" in public all of the time. But for gays and lesbians, it's alarming and "part of sex." You are replicating the discrimination that led the guards and cops to violate the law.

Finally, I just noticed this glaring inaccuracy in your original post: "What about heterosexuals doing the same thing? Simple. They would have been kicked out immediately and nobody would have questioned the decision. No cops, no ACLU, no press, no lawyers, no lawsuits. Only homosexuals get that kind of deference. See the inequality?"

This statement is wrong on several grounds. First, if the restaurant had a general rule against kissing that was always enforced, then the diners are wrong. But NO ONE on the scene said this. Instead, they said it was about two men kissing.

Your comment is also bizarre because heterosexuals kiss all over the country. I suspect you have not even witnessed many gay or lesbian kisses. Nevertheless, you think gays are getting preferential treatment. Intereseting -- equality is "deference." Only in a world where gays are supposed to be treated differently does equality become deference.

Apparently our anonymous commenter hasn't spent much time in airports. I've seen lots of folks, gay and straight, kissing both in greeting and farewell--some of those kisses have been quite passionate. As someone who's involved in a long distance relationship, I dare say I've engaged in some of that airport "sex" myself.

Hallelujah! I agree! I am a very litigious person and would drag these people into court for every penny they had (or didnt have)....the more offensive part to me would have been that these were white men (i.e. representing white patriarchy) trying to enact white patriarchal codes....that has got to stop in this country!

It's not a white thing or a small town conservative thing either. I live in a small town close to Columbus Ohio, and we get many residents here for the cheaper real estate and lower crime, a great many gays have settled here, they don't suffer being among us red state, red county conservatives. I've worked alongside gays as my wife has, have gay friends,. so I reject the stereotype.

We voted for McCain here, heavily, and twice for Bush, we also have an extremely liberal arts college here. We haven't pitchforked any of them yet,.. to us, mob violence and intolerance are just too.. leftwing. No one gets harassed here for being gay or liberal, argued with maybe if you're a liberal, but debate never skinned anyone. (it just feels like it when it's done well.)

It's more than annoying when people assume if you're a conservative in a small town, you MUST... be the following. often wrong, often as bigoted as the things we're accused of being.

You judge men alone, as individuals, or not at all.

I married a democrat, a Hillary supporter no less, and in our 12 years, she reminds me to see democrats as individuals. Even when it's hard because some did something hateful.

Being a gay male, originally from Texas, I know at first hand the discrimination towards gays in that state. Nevertheless, it is my home-state so I don't want to talk about it TOO harshly... For me growing up in Texas (Dallas area) it really wasnt that bad, yes I got the occasional sneers and looks, the homophobic slurrs in the classrooms, cafeteria, and hallways from all of the jocks and "religious" boys, but it didn't stop me from getting my education. In my school 10 years my previous attendance we had a homosexual student attacked and dragged to a lockerroom and was raped, 10 years later, although more lenient towards gays as my school was, you could still feel that thickness in the air as people stare at you with daggers in their eyes and fire spitting from their mouths. It truly shows that we are a nation divided, and will it ever stitch itself back together? i sincerely hope so, we shouldnt have to hide our feelings in the shadows, and the privacy of our homes.. Although America is getting better, there are still so many areas like El Paso that still try to punish us for being the way we were born (No i do not believe in the "You chose to be this way" scenario). American needs a reality check, FAST.

Nell- I also am one that is used to having inter-racal relationships. Currently I am dating an african american guy, and i too have had the long kiss goodbyes in the airport terminal as my ex would go back to college.

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

Pollster.Com, Now on The Huffington Post

Brian Leiter's Law School Reports

Supreme Court of the United States (SCOTUS) Blog

FindLaw News - Top Stories

News - Gainesville Sun

Privacy Policy

This site uses third-party advertising companies to serve ads when you visit our website. These companies may use information -- but never your name, address, email address, or telephone number -- about your visits to this and other websites in order to provide advertisements about goods and services of interest to you. If you would like more information about this practice and to know your choices about not having this information used by these companies, click here.